While one could reasonably characterize fan fiction as "socially contro- versial,” with some lauding the practice as a creative outlet and others meeting it with sneers, legally speaking, its position is undeniably precarious. Fan con- tent, including fan fiction and fan films, lives in the liminal space between cop- yright infringement and fair use. Fan creators argue their works are motivated by a desire to connect with beloved copyrighted expressive works—frequently popular media franchises—and are intended only for enjoyment by themselves and very small fan communities. Copyright owners find the practice of creating fan work far less innocuous, claiming the works threaten to undermine the value of their franchises by creating competition with sanctioned works and over-saturating their markets. This article attempts to reconcile this conflict by turning to trademark law, and its "likelihood of confusion" standard. The article will argue that the types of expressive works that typically give rise to fan works—media franchises— are so heavily branded and commodified that they closely resemble tangible products. Corresponding to this product-like quality are a distinctive set of ownership interests that are highly reminiscent of a trademark owner’s interest in their brand. These interests diverge from the normative functions of copy- right law in a significant enough manner such that tailoring a specific frame- work is warranted. Trademark law can offer the copyright regime a set of key principles that can be adopted within its existing framework to accommodate the interests of rightsholders without squelching the creativity of fans.
Chi.-Kent J. Intell. Prop.
Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol22/iss1/7